UC-NRLF lltlli ' illliiiii iiMil lilii illii ill iiiiiliii B E 7TE DDl K D K 219 353 1870 :l\IN ENGLISH LAW AND IRISH TENURE. BY FREDEIUCK WAYMOUTH GIBBS, C.B. LONDON: WILLIAM RIDGWAY, 169, PICCADILLY, W. 1870. Pric* Two Shiilings. ENGLISH LAW AND IRISH TENURE BY FREDERICK WAYMOUTH GIBBS, C.B. LONDON: WILLIAM RIDGWAY, 169, PICCADILLY, W. 1870. Digitized by the Internet Archive in 2008 with funding from IVIicrosoft Corporation http://www.archive.org/details/englishlawirishtOOgibbrich 5PK2/9 ENGLISH LAW AND IRISH TENURE. ^ No one can hope, at the present stag"e of the discus- sion, to write anything* really new about the Tenure of land in Ireland. The utmost to which a writer can aspire is to g-roup the facts and information accessible to every one in fresh combinations, and to place the results of the accumulated evidence in some new light. This is all I aspire to. I have been much struck by a remark made to me by more than one Irish landlord, in reference to some of the schemes which have been lately proposed : — *' We hold/' they said, ^' our lands '^ by g-rant or purchase under English law, and we ^^ claim that the remedies adopted for Ireland should " be in accordance with Eng-lish law.'' Every one must feel the force of the remark, and must wish the reme- dies offered by English law to be exhausted before going beyond it. English law is not, and never was, a S3^stem merely of inflexible rules in regard to tenure. In feudal times, the age of its strictest rules, those rules were modified by manorial customs, of which our early law books have handed down many examples ; and even in that age custom converted the tenure of villenage into copyhold. In later times, equity and customs of the country have come in, and English law has scanned, with ever increasing sensitiveness, the relations which the parties have themselves created, B 133 My object is to place the facts of Irish tenure by the side of the principles of English law, and the decisions of our Courts most nearly applicable, and to see what help these principles and decisions afford us towards dealing" with the past and legislating for the future. We shall find^ probably, that our conclusions must take the form of suggestions rather than of positive enunciations of law, for the relations of the parties in the case before us are embrangled, and the dealings of the landlords of Ireland with their tenants have resulted, if I mistake not, in a very complicated state of accounts. The facts besides of Irish tenure are varied, and not unfrequently asser- tions regarding it made by one are contradicted by another ; and on scarcely any point are the facts so distinct as to allow of a general statement being made without the introduction of large exceptions. I have therefore stated nothing of importance except on the evidence of witnesses speaking under responsibility, and I have constantly preferred, at the risk of being tedious to readers not deeply interested in the subject, to let those witnesses speak in their own words, that my readers may be able for themselves to gauge their credibility. Still, I venture to hope that the investiga- tions contained in these pages may prove neither useless nor unniterestmg, There is one point in which all who examine any Irish question agree, that it is impossible to under- stand the present without some reference to the past. To the past, therefore, we must look, yet only so far 3 as tlie past is distinctly connected with or illustrates the present, and without allowing* ourselves to be led astray by mere antiquarian research. The course of our investio-ations takes us to the epoch, as our starting" pointy when Eng-lish law was elFectually introduced into Ireland. That epoch was the reij^'n of James the First. The earlier condition of Irish tenure is beat explained by the chang-es then made. The two centuries and a-half since that epoch fall of themselves into five periods : the period from 1603 to the rebellion of 1641, distinguished by the settlement of Ulster 3 the period from 1641 to the accession of Queen Anne in 1702, during* which the Cromwellian settlement was made, and the settlement of William the Third was beg-un; the period from 1702 to 178*2, the ag-e of the Penal Laws relating* to tenure ; the period from 178'2 to the Famine of 1846; and, lastly, the period from the famine to the present hour. Each of these periods has contributed its share to the present state of tenure ; but none as it appears to me, a more important share than the period from 1782 to 1846. On the preceding* periods, therefore, we will dwell as lightly as possible. I. James the First began his reig*n with the fixed intention of carrying* out, in the words of an Irish Statute, the " happy uniting* of the Kingdoms of England, Scotland, and Ireland, under one Imperial Crown."* With this view, he determined to introduce * 11, 12, and 13 Jac. I c. 6. B 2 Eng-Hsh law over the whole of Ireland. Before his time Eng^lish law had been of force only over the counties of Louth, Dublin, Meath, and Kildare, the counties within the Pale, and over some of the Eastern seaports. Beyond these limits the authority it had once asserted had fallen into decay throughout nearly the whole of Ireland, and the native or Brehon law had been recognized as the law of the mere Irish. Hence, when English law was introduced, the relations between English law and Brehon law necessarily came before the King's Courts and the King's government in Ireland. Was English law to exclude Brehon law, or to admit it as a particular custom ? There can be no doubt that the Judges felt the importance of this ques- tion, for they discussed it with great solemnity. Two well-known cases, reported by Sir John Davies, the Irish Attorney-General of that day, called ^' The case ofTanistry" and '^ The Irish Custom of Gavelkind," and some tracts written by him, contain the decision of the Judges, and afford us our chief information on the whole subject. We are told by him that the lands pos- sessed by the Irish were divided into territories, each under a chieftain ; and that the inhabitants of the territories were divided into septs, each under its chief. The ^^ chiefry " of the chieftain of a territor}^, and of the chief of a sept ran in course of Tanistry 9 the possession of the inhabitants ran in course of Gavelkind. By the custom of Tanistry, the chiefry with the portion of land annexed to it went, on the death of the chief, to the oldest and worthiest of his blood and surname, who was called the Tauist. By the custom of Gavelkind, the lands of each inhabitant on his death were subject, at the will of the chief, to partition among' all the males of the sept. On the death of any one holding* a considerable portion, the chief assembled the sept, and having- thrown all the shares into hotch-pot, made a new partition; not assig-ning- to the son of the deceased his father's portion, but allotting" to all the members of the sept portions according- to seniority. The system, Davies adds, caused frequent partitions, the removal of tenants from one part to another, and uncertainty of possession *, no civil habitations were erected, no en- closures or improvements were made; and Ulster especially, before the plantation of the Eng'lish Under- takers, seemed all one wilderness. The custom, he notices, had three other points repugnant to the Common Law of England ; bastards succeeded as well as legitimate children; wives of tenants were not entitled to dower ; and daughters did not succeed in default of male heirs. The custom of Tanistry was brought before the Judges in a claim for a castle in the county of Cork, and its merits were carefully argued ; and though we may smile at some of the reasons which had great weight with them as feudal lawyers, it is impossible not to agree in their judgment that the custom was open to great objection, and was the cause of great effusion of blood and of many other mischiefs. The custom of Gavelkind was brought before them as matter of policy for their advice. They compared it .with two precedents with which they were acquainted — the g-avelkind of Kent and the g-avelkind of Wales. It differed from the g-avelkind of Kent, a custom lono- recognized in English law ; but in the three points last noticed, it resembled the gavelkind of Wales. Now the history of Welsh tenure is remarkable. When Edward the First incorporated Wales with England, he caused the laws and customs used in Wales to be rehearsed in the presence of his Council, and some he abolished and some he allowed, and othere he reformed.* Among the last was Welsh gavelkind, Avhich he stripped of the three peculiarities which the judges found in Irish gavel- kind 3 and, thus reformed, the custom existed till it was put an end to by a Statute of Henry the Eighth.f This Statute helped to guide the judges. They resolved that the custom was void, and that the inhabitants of the Irish territories were to be governed thenceforward by the rules of the Common law. The Report of Sir John Davies leaves much in the ancient tenure unexplained. The partition of land by the chief among the sept, implies that the land was the common property of the sept; while the three points in which the Irish custom resembled Welsh gavelkind, indicate that rights of succession existed, and that, to some extent or over some land, tribal propert}^ had given way to separate property in individuals or in families. Davies does not explain this apparent con- tradiction. The Judges when comparing Irish gavel- * 12 Ed. I., Stat, milia). t 31 Hen. VIII., c. 2G, s. 91. kind with Welsli g-avelkind evidently derived tlieir knovvledg-e of AVelsh tenure solely from the Statute of Edward, for they refer to nothing- else. Following- out the comparison beg-un by them, and consulting- for ourselves the ancient Laws of Wales, we find a law which may perhaps supply an explanation. There was in Wales hereditary land, and land which was not hereditary. The hereditary land went in the family, but the land which was not hereditary was divided by the King-'s officers among* all the inhabi- tants of the townland. This division is so like the partition made by the Irish chief, as to render it pro- bable that the account g-iven by Davies is incomplete. His further statement that the partition was at the will of the Irish chief is too improbable to be accepted without hesitation. We shall not, however, g-ain by pursuing- the subject. Amidst its difficulties, one thing* appears clear even from this Eeport, and the additional knowledg-e acquired by modern investig-a- tion places the point beyond a doubt, that the Judg-es had not thoroug-hly mastered Irish g-avelkind.* The Eesolution of the Judges was declared to be law, but for the protection of the Irish a provision was added confirming- in their possession all who had enjoyed any portion of land by Irish g-avelkind be- fore the beginning" of the king-'s reign. Thus Irish customs were abolished, and the legislators of James * Davies' Eeports, 78, 134, Eng. Translation. Hallam's Const. Hist. III. 459. Ancient Laws and Institutes of AValcs, p. 82. Ancient Laws of Ireland, II. Preface, p. xlvi. 8 the First broke Avholly with the past. Within a year or two of the date of this Resolution, the g-reatost English lawyer of the age, Chief Justice Coke, de- scribed Eng'hsh law as divided into Common law^ Statute law, and Customs of Eng-land. Eng-lish law was introduced into Ireland without the element of custom. It could not carry thither the customs of England. It rejected all the customs of Ireland. At the very beginning-^ therefore, there was a difference between English law as administered in England and as administered in Ireland. In England since that day the domain of Custom has been progressively enlarged, and Custom itself has undero'one a chano-e. The lano-uao-e of the old law & O o o is that Custom has the force of law. This was true of manorial customs, for they were in fact local laws. But the language does not accurately describe the obligation of a modern *^custom of the countr3^'^ That is a term expressed or implied in the agreement of two parties contracting in that country or district with reference to the subject-matter of the custom. As tenure has passed from tenure by status, the tenure of the old manors, to tenure by contract, so customs have passed from being incidents of tenure by status to being terms of a contract. This transition has been accompanied by one remarkable difference. The an- cient customs required for their establishment use con- tinued time out of mind, while modern customs of the country become established whenever they can be pre- sumed to be generally admitted. Practically agricultu- ft fists consider an usage to become generally known in a district in about twenty years. Hence Custom has acquired the flexibility of contract, and there is, perhaps, no relation of life which it has done so much to regulate as the relation of landlord and tenant. ^^The common law," Lord Wensleydale said, in a judgment delivered in 1836, of great weight among lawyers, " does so little to prescribe the relative duties of landlord and tenant, since it leaves the latter at liberty to pursue any course of management he pleases, provided he is not guilty of waste, that it is by no means surprising that the court should have been favourably inclined to the introduction of those regula- tions in the mode of cultivation which custom and usage have established in each district to be most beneficial to the parties." * Custom has thus restrained the tenant's liberty, and in turn it has given him pro- tection. That protection has been at all times, and especially in recent times, a marked effect of custom. Thus in England, though permanent improvements are seldom made by a tenant, yet in districts where a prac- tice of husbandry has grown up requiring expenditure for which he cannot reimburse himself during the ten- ancy, side by side a right of remuneration, called tenant-right, has also grown up, beneath the shelter of the ^* custom of the country." In 1847 a Committee of the House of Commons was appointed to inquire into the agricultural customs of England and Wales; and their Eeport contains so * Hutton V. "Warren, 1 M. and W., 474. 10 much that is closely connected with our subject as to justify our dig-ressing- to study it. They reported that in addition to usages of long* standing with the name of tenant-right; under which an outgoing tenant was allowed compensation for various ordinary operations of husbandr}^, when precluded from receiving- a due return by the termination of his tenancy^ a modern usag-e had sprung* up, extending- the principle to im- provements of the soil — such as draining, chalking*^ and marling", — which required longer time to elapse before the increased productiveness obtained by them could reimburse the expenditure incurred. This mo- dern usage^ they said, had gradually g-rown into acceptance in many districts, till it had become recog*- iiized there as the custom of the country, and was finding- its way into new districts. The amount of the compensation was settled by ascertaining- the cost of the several improvements, and then spreading it over the number of years within which each kind of im- provement was supposed to repay itself, and deducting from the number the time during which the tenant had enjoyed the benefit of the improvements. The Com- mittee traced this modern usage to the introduction of spirited systems of farming-, and attributed its success- ful growth to the co-operation of landlords and tenants, who had entered into agreements by w hich the land- lord promised to give compensation for the tenant's outlay, and had enlarged their agreements with the advance of agriculture. One instance from the evidence will exhibit a custom 11 in the process of growth^ and will serve later for the purpose of comparison. A g-entleman of Lincolnshire, who had inanag*ed his own property for upwards of fifty years^ stated that it was now an established custom in Lincolnshire for outofoing* tenants to receive a proportion of their outlay upon artificial manures, underdraining-, and some other operations, calculated with a reference to the number of years they had enjoyed the land. He remembered, he said, the orig-in of the custom. In his young*er days farming* in Lin- colnshire was very backward, and one-third of the country was wretchedly cultivated. The introduction of the four-course system, of the use of artificial manure, and of underdraining", brought improvements; and -with the improvements g-rew up this custom. After a lapse of years, some valuers beg'an to make allow- ances to tenants quitting- their farms, for their outlay towards these improvements. But the arrangement was very gradual in its prog'ress. At first it was stoutly opposed by other valuers and by incoming* tenants, as an innovation ; but by deg*rees it won its way "from the wisdom," he said, " and justice of the measure, for the more it was investig'ated, the more it was found to be just.'* He was asked if the custom was the conse- quence or the cause of the improved cultivation. It was the consequence, he answered ; but as it insured the tenant compensation on quitting*, it had, in turn, stimulated improvement. A case decided by the Court of Queen's Bench, in 12 1851 shows us one of these customs in the Courts of law. A 3^early tenant of a farm in Derbyshire held his farm upon the terms of his cultivating* the land accord- ing to the rules of g-ood husbandry^ and the custom of the country. The tenancy was determined by the landlord, and upon its determination, he claimed from the landlord^ under the custom of the country, a pro- portional part of the cost of drainag'e done during- the preceding" two years, but done without the knowledge or assent of the landlord. There was no dispute as to the propriety of the drain ag-e, but the existence of the custom was disputed, and conflicting* evidence was brought forward. The jury found tha^: the custom existed as alleged by the tenant. It was then argued that the custom was unreasonable ; and this point was reserved for the judgment of the Court of Queen's Bench. The Court held the custom to be reasonable. One of the judges, Mr. Justice Erie, remarked that it would not be an unreasonable contract between land- lord and tenant that the tenant should be at liberty to put in such drainage as was necessar}^, and that the landlord should pay a portion of the expense ; and if it was not unreasonable as a contract, it was not unreasonable as a custom.* In 1845, the late Lord Derby brought a Bill into the House of Lords for giving compensation for im- provements made by tenants in Ireland. In a speech ♦ Mousley v. Ludlam, 21, L. J., N.S. G4.. 13 of great eloquence, he said that the most important because the most effectual means of improvement in Ireland was by encourag-ing- the occupying" tenant to invest his labour and his capital in the land : but it was an object to which the Leg'islature had not hitherto devoted its attention. He calculated the capital hoarded b}^ the tenants. It could be called forth, he said, only by g'iving* the tenant security that, if it were ex- pended on the land, he should not be removed without fair compensation for the improvements it had effected. In England that security was g-iven by the custom of the country, which had the force of law ; and compen- sation was awarded for improvements made not with the express consent of the landlord, but without leave asked for a sing-le one of them. In Ireland, he said, there was no such custom : and he urged the House to apply the principle to Ireland by law, which was recognized in England by custom.* This absence of custom following and adapting itself to the actual relations of landlord and tenant cannot fail, I think, to be the first point which strikes an Eng- lish lawyer in considering- Irish tenure. Knowing that larg-e districts in Eno-land are held under a tenure from year to year, and that where improvements of the slightest durabilit}^ are made by tenants, their outlay is reimbursed under some custom of the country, — when he comes to Ireland and is told that nearty the whole of the island is lield under the same tenure, and that as a rule the permanent improvements are, or at * Hansard's Pari. Debates, 1845, June 9. 14 stny rate till recently were^ made almost wholly by ten- ants, an Eng'lish lawyer looks at once for a custom of the country to regulate the arrang-ement. But he finds none. Even Ulster tenant-right^ which does provide for the arrangement, is not a custom acknowledged in law, but a course of dealing- resting upon opinion. As it was in the da3^s of Sir John Davies, so has it been all along, and so is it now. The relation of landlord and tenant in Ireland has been governed by English law, leaving out the element which in England forms the chief protection of the tenant. The question naturally arises, and has frequently been asked of late years, as a question the answer to which ought not to be overlooked in legislation — What traces did Brehon law, though abolished by the Judges and the Lord Deputy, Sir Arthur Chichester, leave in the habits and sentiments of the people, and can any of those traces be observed at the present day ? Of the custom of Tanistry we hear no more; but the custom of gavelkind long survived, reappearing, under English law, in a form of tenancy common down to the early part of this century 3 and it may still be traced in the love of holding property in families, in the tendency to subdivide the land, and in an unfa- vourable shape, in Rundale, w'here the tenement is made up of a number of scattered patches of each particular quality of the land. Probably the subdivi- sion of the land in the early part of this century would have occurred under any tenure, for there was enough in the circumstances of the time to explain it without IS recurring" to traditional sentiment. Subdivision is the inevitable policy of a society thrown back upon the land as its sole resource. But the necessity for sub- division received no cheeky and was, on the contrary, fostered by Irish sentiment. On the remains of Brehon g-avelkind, we have evi- dence given before the Committee of the House of Lords, in 1825, by Mr. Leslie Foster, the Member for Louth, valuable as coming* from a man of observation, and before the recent speculations on the political sig- nificance of national traditions : — '• The north of Ireland, that portion of the island which was settled by James the First, and in which ho in fact destroyed what may be called the original fabric of Irish society, is very little open to the observations applicable to other parts of Ireland which did not undergo that change. In these other parts, the ancient habits of the Irish have to a great degree continued to this day; and though the English lq.ws have been introduced among them, yet many of their own ancient laws still continue to exist in the shape of habits ; their dispositions and their practice are in a state of complete contrast with the theory of the law aa it regards the tenure of land." Mr. Foster followed out the subject in his answer to a question as to the efTects of an Act passed in 1816, g-iving* the Civil Bill Court jurisdiction in ejectment in the case of small tenements, and thus rendering* the process more easy : — " The act referred to by your Lordship was, I conceive, one of the most important in its consequences to the lauded interest of Ireland, which has ever been passed in that country. Its primary object was to enable the landlord to have a remedy against his tenant, by a cheap and expeditious process, and thereby to lead to 16 the abolition of the tenancy in common, wliicli was one of the greatest sources of the misery of the occupying tenantry of Ire' land. Antecedently to the passing of that Act, there was a bounty given by the law to the landlord, to unite his tenants into clusters rather than to deal with them individually. The prac- tice was to lease a certain tract of land to a company of persons, who all held it in common, no individual having any separate property in it whatever ; very often there was added to that, the inconvenience of the tenancy being from year to year or at will. In either state of things, but more particularly when those two circumstances conspired, there was no incentive to industry. This habit, I apprehend, originated in the Irish laws antecedent to the English taking possession of the island. By the old Brehon laws, it was the usage of the people to hold tracts of the country by clans, and as tenants in common, and at the will of their immediate chief; and in those times succession was by the law of gavelkind. These habits I conceive to have continued to subsist in Ireland more or less perfectly in^ those parts which were not the subject of the plantation of James the First, or other English sovereigns, until the present day. I conceive that the state of the law antecedent to the statute to which your lordship has referred operated as a bounty upon the land* lord to acquiesce in that state of things. He found it more convenient to allow those companies to continue to possess the land in that manner, because he could then, through the pro- cess of an ejectment, deal with any number that might be united in one company; whereas, if he leased to each person to hold in severalty, he would be obliged to bring as many ejectments as he had tenants. The first object, then, of the statute referred to was to enable the landlord, at the expense of a few pounds, and in the course of a few weeks, to get possession of his land from the occupying tenants in case of their withholding rents, provided the farm did not exceed a certain magnitude — fifty pounds a year. I conceive it has been the first and most important consequence of that statute to break up the tenancies in common very much. I know that the landlords in the south have already gone a great 17 way towards putting an end to that species of tenure, whicli liaa in my view, been one of the greatest sources of the misery of the tenantry." There is an account of this form of holding* in a Report written by Sir Henry Piers in 1682 on the county of Westmeath, a county, probably from its adjoinmg- the Pale, always noted for adherence to Irish usao'es.* o Speaking" of the husbandmen, he sa3"s : — " I will crave the reader's patience to suffer me a while to give an instance of the dealing of this sort of men, and their customs in the manage of their husbandry one with another. Every town- land held by them is grazed in common ; that is, every man's stock goes indifferently over all the pastures of the town. The difference lies here: he who holds the greatest number of acres in the arable is supposed the more able farmer, and consequently is allowed to have more cattle in the pastures of the town than he who holds fewer acres, or a lesser holding, aa they call it. The great evil hereof generally is overstocking their ground, b}'^ means whereof it is too often seen, once in three or four years, that they hazard the loss of their stock. As they graze in common, so one who is not acquainted with them would think that they plough in common too. For it is usual with them to have ten or twelve ploughs at once going in one small field; nevertheless everyone here hath tillage distinct, though all appear fenced up in one mear or ditch. They divide usually one field into acres, half-acres, stangs — that is, roods ; and of these they make so many lots or equal shares, as there are ploughs in the town, so as a man whose share may amount to three acres shall not have, perhaps, half an acre together, but scattered up and down in all quarters of the field.'* Sir Henry Piers is not a friendly witness, and he narrates with some humour the care each man toot ♦ Hallam's Const. History, iii. 485. C 18 lest he should be overreached by his neighbour ; the casting" of lots for the shares^ the discontent, the wrangling-^ a new division, and the restoration of peace by the interference of the landlords. Their customs, he tells us^ obliged them to aid one another in ploughing. If they disagreed, the husbandman seeking aid appealed to the landlord, who w^as con- sidered bound to provide a helper, and if this helper made default, himself to help. The husbandman then brought his own cart and tackle day by day into the field, and offered them with his own labour and a proportion of seed to the defaulting helper, and at the harvest became entitled to a share of his crop. The custom, he adds, was called the law of Owen with the Beard, an ancient Brehon. The landlords, in the picture drawn by Piers, retain many of the characteristics of chiefs. They protected their tenants against the oppression of others, in many cases from the payment of their just debts, and in turn, many still were, as had been the landlords of old, oppressors of their fol- lowers and tenants, and much given to cosher, that is, to come and live on them. They were appealed to in every dispute ; and so necessary were they that there was a saying that a town without a landlord and a bull, was a town turned topsy-turv3^ The following passage describes the tenure : — *' They hold but from year to year, nor do they desire longer term. They have a custom on a stated day every year to come and give warning to their landlord to provide other tenants for their holdings and houses, and this they will do as formally as if 19 tKey were in earnest, and yet after all they intend nothing less* for they will not leave the place witli their good will, where they and their ancestors have sat. In this case you shall have some of them tell their landlord, that they and their forefathers have been there as long, and perhaps longer, than he, and they will not out for him; whither shaU they go? and the like stuff; and this their shyness of leaving their ancient habitation, is not without some cause. For if one of them remove but to dwell in the next county, nay, the next parish, provided it be under another land- lord, he is on every little picque with his neighbour, reproached with terms importing vagabond, or a forsaken outcast, etc., and 80 keen is his anima redeundi, that he is not at ease within himself, till he make way for his return again, to the place, as he phrases it, where he ought to be — Nescio qu^ natale solum dulcedine cunctos Tangit, et immemores non sinit esse sui."* In the next century Arthur Young* found agricul- tural partnerships resemblingf this holding of West- meath, in Kilkenny, on the mountain sides of Wicklow^ as well as in other places. Of Kilkenny he says : — *' They have a practice here which much deserves attention • three, four, five, seven, &c., little farmers will take a large farm in partnership. They must be equal in horses, cows, and sheep, and tolerably so in other circumstances ; they divide every field among themselves equally, and do all the labour of it upon their separate account, assisting each other mutually : they never throw the whole into one stock and divide the profit, from suspicions, I suppose, they have of one another."t In 1811, Mr. Edward Wakefield, saw large tracts in Slig'O and Tyrone, held undivided in partnership ; and as late as 1844, one of the witnesses before the Devon Commission, the Eev. Father Lyon, described * Vallancoy Collectanea de Eebus Hibernicis, I. 115. 120, t A. Young's Tour. Vol. i. 99 ; 8vo. 1780. V *ent. In some instances the aofent endeavours to regulate the amount paid from the fear that an exces- sive payment will lessen the tenant's means to do justice to the farm. In these cases the arrears of rent are openly paid. Very often a landlord, averse to the consequences of the S3^stem, declares that he does not sanction the transaction. But the outgoing* tenant leaves ; the incoming- tenant broug-ht to him by the outg-oing tenant enters with his approval, and the arrears of rent are found paid. ^^ He pretends, as it were," says Mr. Trench, "to know nothing- of how tbis is managed; he pockets the money produced by tenant-right, but still maintains that he does not acknowledge the system/' Mr. Kincaid, an ag-ent of large experience, sa3's : — " Tenant-right means two or three different things. It means, iu the first place, possession of the land, irrespective altogether of the state or condition in which you get the land and buildings. Secondly, it includes improvements made by the tenant ; they will increase the amount of tenant-right ; if the land be in a high state * Minutes of Evidenc2. H. L. 1867. Q. 14. 66 of cultivation, and tlie houses and buildings in good repair, the tenant-right will be Increased ; thirdly, the question of rent will enter, to some extent, as an ingredient in the calculation, and associated with that will be the character of the landlord. They are nearly the same points, because if you get under what is called a good and liberal landlord, who does not charge very high rents for his land, a tenant will give a larger amount of tenant-right fine for a farm thau he would under a very severe landlord, who screwed out the last penny he could get as rent for the land."* These are descriptions of the transaction^ and not definitions of the rio-ht claimed. In 185*2^ when the late Mr. Justice Shee and Judge Keogh brought a Bill into the House of Commons for the protection of Ulster tenant-rig'ht, it became necessary to reduce the right to a legal proposition^ and they thus defined it in one of the recitals of the Bill : — " " "Whereas a right of continued occupation is enjoyed by the tenant in possession, subject to the payment of the rent to which he is liable, or such change of rent as shall be afterwards settled from time to time by fair valuation, with a right to sell his occu- pation to any solvent tenant to whom the landlord shall not make reasonable objection, and that such tenant shall not be evicted by the landlord without being allowed to sell his interest, or else being paid by the landlord the value thereof, as if sold to a solvent tenant."t The evidence must^ I think^ lead us to agree with Lord Dufferin in his account of the origin and date of Ulster tenant-right 3 and this date and origin invest the custom with greater importance than if it had to be carried back two centuries and a half^ to causes * Minutes of Evidence. H. L., 18G7. Q. 1469. t Parliamentary Papers, 1852-3. 7. 57 we could notassig'n. It must strike everyone that the custom is contemporary with the recent agricultural customs of Eug-land, of which we chose an instance in Lincolnshire, and like those customs, sprang" out of a state of growing- prosperity. The Ulster custom, like the Lincolnshire custom, is desig-ned to cover labour and materials attached to the soil beyond the protec- tion of the common law, for whatever name the pay- ment took, the custom arose when the management of the soil was left wholly with the tenant ; and like the Lincolnshire custom, it is a recognition, first between the tenants themselves, and when admitted by the landlord, between the tenants and the landlord, of the creation by the tenant of a property, beyond the scope of the maxims of common law. Similar mo- tives are at work; similar interests have to be pro- tected ; but the customs have run different courses. The Lincolnshire custom would be admitted at the Lincoln assizes ; but the Ulster custom has never been acknowledged as law. From time to time at the assizes in Ulster, counsel have offered evidence of the custom, but the Judges have always ruled the evidence to be inadmissible. Nor is it possible to dissent from this ruling. The maxim of law is a maxim of com- mon sense — that a custom must be certain ; and what " certain " means, may be illustrated by an old instance in our law books, where a custom to pay at one time twopence an acre in lieu of tithes, and at another time threepence at the pleasure of the person paying, was held bad for uncertainty. The payments in Lincoln- 58 shire are certain_, because, however intricate the ac- count, they are calculated on the basis of labour done. The payments in Ulster are not reducible to certainty. Still the custom does contain elements of certainty, and is easily capable — to borrow a word from the Statute of Edward the First, applied to the custom of Wales — of being- reformed. The custom is on the brink of being' a g"ood custom. And it is a curious fact, which I can but record without attempting* to explain, that having g'one so far, it has not gone further, and been reformed, either upon the sug-gestion of some far- seeing- judge, or throug-h the necessities of the persons interested, into a g'ood custom. But thoug'h not a g'ood custom in law, we shall find later, I think, that it g-ives equitable protection to the tenant, and offers elements for a solution of the difficulties of Irish tenure, which no wise legislator can afford to neglect. The new system of the personal management of landlords begun about 1820, was in full operation by 1840. With it came another chano-e, which brino-s US to the present state of tenure. The sixty-one years leases, granted after the Act of 1777, and the later and shorter leases of twenty-one years — a com- mon term after 1816 — all fell in about this date. Then for a variety of reasons landlords refused to grant new leases. It has lately been said that the rebuff which their political power had met with by the election of O'Connell for the County of Clare, was a main reason. The evidence, however, already quoted, shows that far more powerful reasons had for some 59 years previously influenced them — the dread of a })auper tenantry^ the sig-ht of the subdivision brought about under the leases just expired, and the desire of having* uncontrolled manag-ement of their own pro perty. It seems to me fairer to say, that when the Act of 18C9 raised the qualification necessary for the franchise, and political influence w^as no longer to be gained by carving out numerous and minute leaseholds, this motive in favour of granting leases ceased, and the reasons against granting leases were left to their full swing. The evidence before the Devon Commission shows that many tenants at that time were not very anxious for leases. The high stamp duty influenced some. Others who had suf- fered under the high rents demanded by middlemen and sublessees, probably hoped that when brought face to face with their superior landlords, the conditions of the bargain might be more moderate and more flexible without a lease. Both tenants and landlords anticipated dividing the portion of rent which had hitherto gone to the intermediate lessees. Nor has the anticipation proved false. The immediate contact of the landlord and tenant has resulted in an increase of the rent of the landlord, and a decrease of the amount paid by the tenant. Throughout the last century, and the first thirty years of the present century, the com- ])laints of the excessive rents paid by the occupier of the soil were unvaried and uncontradicted ', but at the present time, by the consent of nearly all who have examined the sulject, Ireland is not overrented. So 60 far the tenants have g'amed by a system in which per- sonal manag-ement, and the absence of leases^ have been blended. Thus Ireland glided naturally into a stag-e of tenure without lease^ of tenure^ that is^ according* to law, from year to year ; and in that stage the country still continues. To this tenure the remarks in the fol- lowing' pages are limited. And amidst the disad- vantag-es presently to be enumerated, the tenure has one advantag-e ; it admits more readily than tenure under leases with express covenants, of the application of legislative remedies. V. The period from 1846 to the present time has been marked by the establishment of the Landed Estates Court; which has brought into full view the faults of the present tenure; by the increased share landlords have taken in improvements, which has sensibly modified the state of accounts between land- lord and tenant ; and by some legislation on the sub- ject of our inquiry. We will take these three events in order. From its first introduction as the general system in Ireland, tenure without lease beg-an to betra}^ its weak points. Introduced by the landlord then to facilitate the consolidation of farms, it necessarily rendered the position of tenants uncertain. The Eeport of the Devon Commission says, : — *' The uncertainty of tenure is constantly referred to as a pressing grievance by all classes of tenants. It is said to paralyze all exertions, and to place a fatal impediment in the way of iai- provement." 61 The evidence is almost unanimous that the sense of this g-rievance has gone on increasing-. In the second place, the tenure lodges too much power in the hands of landlords and ag-ents; for it is obvious, without adducing- examples, which might be supposed to be adduced to raise a prejudice, that energy in enforcing- the rules made for the manag-ement of an estate will infallibly sometimes pass, and still more often appear to pass, into vexatious interference with the domestic affairs of the tenants. Thirdly, the tenure leads to results of great hardship. We can draw a proof from the records of the Courts of Justice. There was a case tried in 1865, arising- out of some evictions at Rathcore, in the county of Meath, which will offer us an illustration, not the less in- structive because under the particular circumstances the evicted tenants recovered heavy damages from their landlord. The case deserves our attention, were it only that it is constantly referred to in Ireland. The property upon which these evictions occurred contained about five hundred acres, and was held by the defendant in the case, Knox, for a residue of a term of ninety-nine years, expiring- in 1883, and purchased by him in 1824. It was occupied by thirteen tenants, of whom the plaintiff, Clarke, was one. He occupied about eighty acres, a farm held by his family for forty years, at first under a lease of twenty-one years,and afterwards ^vithout lease. He was an improving* tenant, and paid his rent with exemplary reg'ularity. The agent, a man of honour and trusted by the tenants, managed the C2 property ; and Knox never interfered till 1861. This fact was a turning* point in the case, as it made Knox responsible in law for the representations of the a^ent to the tenants. In 1857 one D^-as boug-ht the rever- sion of the property as a speculation^ and then soug-ht to buy up the remainder of Knox's term. He wanted the propert}^ without the occupying- tenants^ and opened neg'otiations with Knox on the matter in December^ 1863. The ag-ent was throug-hout kept in the dark as to these neg'otiations. Before this, in March 1851, the aofent suo-ofested to Clarke to take a lease for twenty-one years^ and terms were proposed. A few days afterwards^ Knox in person served a notice to quit on the tenants^ telling- Clarke that the notice was a mere form, intended to compel them to take leases. Clarke, in alarm^ complained to the agent, who bade him not to be uneasy^ since Knox was satisfied with the terms proposed^ and would g-rant the lease. This notice to quit was not acted upon. The lease^ thoug-h promised again and ag-ain, was not granted^ and in March, 1863^ another notice to quit was served. New complaints were quieted by en- courag-ement to Clarke to go on with the drainage and stables he was beginning, as securely as if he had the lease. In 1864 ejectments were serv^ed. Clarke then discussed with the agent whether he should defend the ejectment. He did not want to vex Knox^ but he was afraid, he said, of being ^^ nobbled'^ by the Landed Estates Court. Again, the agent assured him, and begged him to assure the other tenants that Knox 63 would never disturb one of the Rathcore tenants. In January, 1865, D^^as appeared on the property with one hundred and twenty policemen, and the tenants were put out. Clarke then sued Knox on the ground— it is worth noticing* the circuitous mode of relief to which it was necessary to resort — that Knox having* induced Clarke not to defend the ejectment by a promise and a fraudulent representation that he should not be evicted, evicted him. A special jury of King's County found a verdict in his favour, with £800 as damag-es. There was one touch of bitter humour in the trans- action. When Dyns appeared on the land, he said to Clarke : — " I will give 3*ou a piece of advice ; as long- as you live, never take land from any man without a lease. I was robbed in the same way in County Meath.''* It has been one of the incidental results of the es- tablishment of the Landed Estates Court to brino' the hardship of the tenure into full view. Between 1848, the date of the establishment of this Court under the title of the Encumbered Estates Court, and 1 865, pro- perty to the value of twenty-five to thirty millions had been sold in this Court. Now, it is an inevitable re- sult of the present state of things, that the improve- ments of a tenant without a lease not being* secured to him by law must pass as part of the consideration for the purchase-money paid by the purchasers to the seller ; and thus between the purchaser and the seller, ♦ Eeport of Case of Clarke v. Knox, Dublin, 1865. 64 the tenant g-oes to the wall. Had the tenant^ as he ought to have^ a legal claim for compensation for those improvements, he would have a claim, in proportion to their value, upon the purchase-monej. The strongest and most obvious cases of this hard- ship have occurred under Ulster Tenant-Right. The following is the evidence of Judge Longfield, then Judge of the Landed Estates Courts. It will go far to ex- plain the growing fear of the destruction of this right : — " Is it not the fact, that practically, tenants have been handed over from one set of landlords to the other without much consi- deration of any claims that they might have ? " Without any consideration whatever ; I could not lawfully reject one man who came to bid for land, because he would be a worse landlord than another who would not gWe so much. " "With regard to the north of Ireland where tenant right pre- vails, our court acts with peculiar hardship upon them by sub- dividing the land, and a tenant who had an interest in land which be could sell for £10 or £15 an acre, while he had a nobleman or gentleman of several thousands a-year over him, finds that he has substantially nothing at all when he has as landlord, a man who buys on speculation an estate of £100 or ^6150 a-year ; the existence of the tenant right is, in fact, a bonus to bad landlords, and enables them to outbid those who would be good landlords. I will give an example : supposing that the tenants on an estate pay 2t*200 a-year, and their tenant right will probably sell for ten times that at least, very frequently for 10 years' purchase ; a good landlord, who does not mean to disturb the tenants, values it as an estate of £200, and a bad landlord, a man who is disposed to screw up the rent to the utmost legal sum which he can get for it, values it at ^-€300 a-year : of course he will outbid the good land- lord, that is, the landlord who will respect the old traditions of the estate."* * Minutes of Evidence. H. C. 1865. Q. 30. Q. 33. 65 This testimony from such high authority is, perhaps, sufficient, but I will add the evidence of another witness, Mr. Filg-ate, the ag^ent for several larg-e estates in the North of Ireland : — " Does not the operation of the Landed Estates Court violate the tenant right custom a good deal ? " There have been instances of persons having bought in the Landed Estates Court, and having paid a large price for the land and then having considered that they ought to get a certain per- centage for their money, and upon that serving the tenants with notice to quit. " What was the result in most cases ; did the tenant pay the rent demanded, or did he abandon the farm ? " In one case, which I have particularly in my mind, the tenants offered to pay something between what they were paying and what the purchaser wished that they should pay. It was ultimately bo arranged."* To remedy this evil Judge Long-field wishes the Landed Estates Court to have the power of gfiving* leases for twenty-one years to tenants, wherever the custom of tenant-rig'ht has existed with the knowledge of the landlord, because he thinks it reasonable, he says, that a stranger should not be put over a tenant without placing- the tenant in as good a position as he was in by the custom of the country with his old land- lord. The expression of this wish gave rise to the fol- lowing questions : — " Do you think that such power would have any effect upon the marketable value of estates ? " Certainly it would, it would reduce the value of estates that were sold, because it would prevent a certain class of land jobbers * Minutes of Evidence, H. L. Q. 1997. F 6G from buying them with the intention of squeezing the tenants out of the estate ; but any man who wanted to give the tenants the fair privileges which from time immemorial they had had upon such an estate, would willingly pay it. " You admit that it would reduce the marketable value of the estate to the landlord ? " I think it would deprive an estate of an unfair excess which the present law gives to the marketable value." * The difference between the sum which the estate would fetch under lease^ and the sum which it actually fetches without lease represents approximately the value of the tenant-right, or where tenant-rig-ht does not extend, the value g-iven to the estate by the im- provements of the tenants. Upon the sale this value g'oes into the purse of the seller. Popular feeling*^ how- ever^ in Ireland, has been directed ag'ainst the pur- chaserS; who have been branded with the nickname, charg'ed with the traditional opprobrium of a century, of land-jobbers. Judg-e Long-field participates in the feeling". But this justice is not even-handed. With- out a doubt, so far as the purchasers have attempted to screw up the rents of their newly purchased estates, they have been wanting in humanity ; but the indig*- nation which has been directed ag'ainst them has diverted attention from the truth, that the person who has really wrong-ed the tenant is the seller. The purchaser has only dealt with what he has paid for ', the seller has received what Judge Long-field has called the " unfair excess.'' Had the interest of the tenant * Minutes of Evidence. H. C. 1865. Q. 651, 652. 67 been in any way protected, the purchaser would have given, and the seller would have received less.* The period before us is marked in the next place by the increased share which landlords have taken in the improvements made on their estates. The evidence on this point is unanimous, from whatever quarter we summon the witnesses, and however much those wit- nesses may differ in their reasons and their sympathies. In allowing- them to speak in their own words, we must acquiesce in listening" to their reasons as well as to their facts. On the side of the tenants no witness pro- bably better qualified to speak can be summoned than the Rev. W. Keane, the Roman Catholic Bishop of Clo3^ne, who g-ave the following* evidence on the subject before the Committee of 1865. He had then been twenty-six years in Ireland, and was widely acquainted with the Southern counties : — " Is it the result of your experience that such improvements as are made in the country are made, as a rule, by the tenant and not by the landlord ? " The periods may differ. I am not aware that any improve- ment at all (I never heard of any worth naming) was made by the landlords from 1780 until about 1840, for about 60 years. Since the sale of property in the Encumbered Estates Court, I believe that the landlords to a certain extent have done more in that way than they ever did before ; but, as a rule, it was the tenants who made the improvements and, as a rule, the tenants at this moment do not make the improvements, because they have • I have no right to mention names not made public, but I believe some Irish landlords, from a conviction of the justice of the step, have given leases just before a sale of property, and re- ceived, in consequence, less for the property. F 2 68 not the encouragement which they had from 1780, and the reason is that from 1780 they had leases, and hence the saying, ' He holds under an old lease,' was as common in the days of my boyhood as it is to say now, ' they have no leases at all.' They had leases then and the land was improved. After emancipation, the leases ceased to be a rule and tenancy at will stepped in, and that is what now has thoroughly checked the progress of im- provement." * Mr. W. Steuart Trench^ who as the ag-ent for several lar^e estates^ has peculiar means of obtaining' informa- tion^ g-ave evidence before the Committee of the House of Lords in 1867, with sympathies as little concealed as those of the last witness^ but on the side of the landlords : — " There is no more frequent assertion made than that the land- lords of Ireland do nothing, and that the tenants do all, build^ drain, and make every improvement which is made on the soil of Ireland. It is impossible to conceive a more utterly false asser- tion. I by no means desire to deprive the tenant farmers of Ireland of any credit to which they^are entitled. My experience is considerable, and I will do them the justice to say, that except where misled by agitators, I have generally found them reasonable, upright, and fair ; and where able, most willing to join their land- lord in effecting permanent improvements. It becomes my duty, as head manager over four estates situated in four different counties in Ireland, to be responsible not merely for the collection of the rents, but for the judicious expenditure on the improvements carried on upon those estates. Some of them, from various causes, were in a very bad condition, when first entrusted to my charge ; whereupon I usually reported to the landlord the steps I would recommend to be taken, and these having been approved of by him, a large but steadily regulated expenditure in improve- * Minutes of Evidence, H. C. Q. 3344. 69 ments has been the result. I will take the liberty of giving a few- figures for the information of the Committee." Tliese are the figures, put in a tabular form. The first two estates were situated in the Midland Counties ; the third was in the North, and the fourth was in the South of Ireland. Rental. Number of years over which ex- penditure was spread. Land Improve- ment, drain- age, building, repairs of tenants' houses. Compensation for surrender of tenements. Emigration. Sundiy Improve- ments. 1. £15,000 10 £20,867 £3,362 £589 ^1,977 2. £8,000 5 £5,385 £225 ^eii £961 3. £20,000 16 £33,984 £2,831 £7,988 £4,178 4. £11,000 17 £22,222 ^3,948 £17,059 £11,129 Mr. Trench then continued : — " It must be admitted that these estates had been much neglected previous to the improvements vsrhich within the last seventeen years have been undertaken by the proprietors ; but Ireland has much changed of late, and few proprietors now forget that property has its duties as well as its rights. Evictions on these estates have been very few and very rare. The most liberal compensation has been given to outgoing tenants who became bankrupt and could not pay their rents, even for fancied improve- ments, where almost none had been really effected, whilst the large sum expended on emigration was given almost exclusively to those who had taken refuge in the poorhouses in the years 1851 and 1852 ; their holdings being so small as to be wholly unable to support them without the potato, which had then failed as a national food. A large amount of the expenditure on build- 70 inga was given in aid of repairs, the tenant frequently under- taking to do all the manual and horse labour, the landlord giving slates and timber for new roofs, windows, floors, and doors. I have found it far more economical to turn bad houses into good ones, by slated roofs and other improvements, than to build anew. Whenever tenants have improved to any considerable extent, leases varying from twenty-one to thirty years, and sometimes with the life of the lessee included, have in many cases been granted. It appears to me that one of the chief reasons why Irish landlords do not improve their estates still more is the difficulty of obtaining competent persons to secure that good value should be obtained for their expenditure." Another witness, Mr. C. W. Hamilton, an agent who has the manag^ement of estates to the extent of about fifty-six thousand acres in Meath, West Meath, and Kildare, described it as the " g-reatest calumny possible" upon the landlords to say that they do not make improvements. He continued : — ** Upon five estates which I manage, since 1847 we have spent on building and different improvements by the landlords, 3^28,749. There has not been more laid out, because those estates have been long under the management of my father and my grandfather before myself, and I wish to point out the mode in which money is advanced, because although in many cases the houses have been built from bottom to top by the landlord, and some increase of 6 per cent, charged upon the outlay, yet the prevailing custom, and the custom upon which I have always acted in preference to any other is, when a tenant wishes to make any improvement, to say to him : * If you will build good walls, which you can do very cheaply by drawing the materials yourself, and getting the work properly executed, I will give you the timber and slates,* which is what would take money out of the tenant's pocket. That has been done invariably, and no additional rent has been charged for ihat, it being a co-operative work between landlord and tenant." 71 To these instances he added others from his own observation. On one estate in the county of Wicklow the annual cost of building* farm-houses for tenants had been, he said, £7000 a year. On the Duke of Leinster's estate during* the preceding* six years the expenditure on building's had been £17,503. Then, passing from these large proprietors, he added : — "I think that there are numbers of small proprietors who assist in building houses without the actual expenditure of money, though quite in the same way as if the money was taken, out of their pockets. Tor instance, in the case of one proprietor, a lease fell out lately, and three tenants were anxious to get portions of it, of forty or fifty acres each. The landlord said : * It is not convenient for me to spend the money, but I will give it to you for your own life, or thirty-one years, provided you expend each of you £300 on building a house.' Those houses are completed now ; the agreement is a perfectly satisfactory one to both landlord and tenant ; and I believe that the money, though it came out of the tenant's pocket, may be considered to have been actually the landlord's money, because he has given compensation for thirty-one years in the shape of reduced rent. There are nuraberlesss instances of that kind all over the country."* One more witness will suffice. Mr. Kincaid gave evidence well worth attention, both because it does not display, like the evidence of the former witnesses, the temper of a partizan, and because it describes an arrangement which is gaining ground in Ireland : — " Do you not think that it would be better that the landlord should make the improvements for the tenants ? "No ; my opinion is that it should be done between them. I have * Minutes of Evidence. H. L. 1867. Q. 2206, 2207. managed estates for many years now, and I have always found mutual co-operation the most effective and the most agreeable mode to both parties. The tenants do not take sufficient care of the im- provements when they have not a share in them. I always find that in order to induce the tenants to take proper care of fences or drainage, or farm buildings, or anything else, it is essential that they should have a personal interest in them themselves." He said^ the principle of co-operation between land- lord and tenant had^ he thought^ been extensively applied in Ireland. And to the question whether this principle had been applied to small estates as well as to larg-e estates^ he answered — ** Grenerally speaking, I think it would apply to the estates of noblemen and gentlemen possessing large property. I could not predicate that it has been generally done on estates of smaller men, of men under £1,000 a year, although it has been done to some extent. I think, since 1846, there have been very few large estates in which there have not been very extensive improvements carried on, under the supervision and directiou, and, perhaps, with the assistance of, the landlord."* The course of our argument has led us to notice an incidental result of the Landed Estates Court, before noticing" its chief effects. We must keep in sig*ht what has been already mentioned, that by this time more than thirty millions of property have passed through the Court. This property has been bought in holdings of various sizes^ by persons of different ranks, but chiefly by Irish purchasers. They hold under a Parliamentary title. The great majority of them, we are told by Dr. Hancock^ who from his ac- * Minutes of Evidence. H. of L. Q. 1050, &c. 73 quaintance with the working* of Irish institutions is well entitled to speak, have acted^ as was expected, when it was sought to replace their needy predecessors by wealthy and solvent purchasers, and have been a blessing" to their tenants.* Two other Acts of this period deserve attention. One of them, the ^^ Landlord and Tenant Act, I860," declared the relation of landlord and tenant to be founded on contract and not on tenure, and simplified the forms of leases.-f The other Act, " The Landed Property {Ireland) Improvement Act," attempted to deal with family set- tlements and compensation to tenants. The difficulties imposed by settlements, which had been complained of one hundred and twenty years before by Madden, were partially removed. Tenants for life under settlements, are empowered to g-rant Ag'ricultural leases for terms not exceeding* twenty-one years; Improvement leases for terms not exceeding* forty- one years ] and Building* leases for terms not exceeding* ninety-nine years: the Improvement and Building* leases requiring the sanction of the chairman of Quar- ter Sessions; while Building* leases for still long*er terms may be granted with the sanction of a Judg*e of the Landed Estates Court. The Improvements contemplated in ag'ricultural leases * Two Eeports on the History of the Landlord and Tenant Question in Ireland. By "W. Neilson Hancock, LL.D., 1869. p. 35. These reports are valuable and interesting, and enter into details and contain information which these pages cannot give, t 23 & 2Jt Yict. c. lU. 74 include Drainage^ the Reclamation of Bo^ land, the making" Farm roads, Irrig-ation, the Protection of land by embankment from Inland Waters, and the erection, enlarg-ement, and repair of Farm houses and other agri- cultural building-s suitable to the holding. It is said that the restrictions of the Act have inter- fered with its operation. The provisions relating to compensation to tenants are in substance these. A landlord, notwithstanding any settlement, is allowed to come to an agreement with his tenant for the execution by the tenant of any of the improvements above enumerated. In the absence of an agreement, the tenant may serve on the landlord or his agent, a notice stating the particulars of the im- provements he intends to make, the proposed manner of effecting them, the estimated expense, a description of the land to be charged for them, the time for com- mencement, which is to be not less than three months from the service of the notice, and the time for comple- tion, which is not to be more than two years. The owner, or his agent may then give a counter notice within three months of his disapproval of any of the intended improvements, and the tenant is not at liberty to commence the work disapproved of. Upon the com- pletion of the improvements, or if evicted, upon his eviction, the tenant is to lodge with the Clerk of the Peace a statement of the expenditure incurred not ex- ceeding the amount in the notice of improvement ; and the Clerk of the Peace is to serve on the landlord, or his agent, a notice of the statement, so as to give him 75 the opportunity of coming" in and being heard; and after due hearing" in the manner provided by the Act, the chairman of Quarter Sessions may charge the hinds with an annuity of £7. 2s per cent, for the improve- ments allowed for twenty-five years.* This part of the Act has remained a dead letter ; chiefly^ it was said in the evidence before the Committee of the House of Commons appointed to inquire into the subject in 1865, for two reasons : — first, because the compensation is inadequate ; and secondly, because its form is inconvenient, a lump sum, and not an annuity being- required by tenants. About two years before these Acts were passed, a case came before the Court of Chancery in Ireland, which excited great interest, and the full importance of which we shall best appreciate after having- examined the facts, and listened to the Judges who decided it. In 1849 the Koman Catholic priest of a parish in Galwa}^, Dr. OTay, at the sug-gestion of the landlord, Mr. Burke, made a proposal to take a farm in the parish of about thirty Irish acres, at a rate of £1. 55 per acre, for a lease of three lives and thirty-one years after, with an allowance towards putting* the premises in repair. Dr. OTay entered while the negotiations were still pending-, and Mr. Burke finding- he had not power under his settlement to make the lease proposed, offered, in a letter of March 26, 1849, if Dr. O'Fay chose to take the farm in the usual way, to allow • 23 and 24 Vic. c. 153. 76' £•20 towards the cottage, and a lease for life. Dr. OTay g-ave no written answer to this letter ; he con- tinued to occup}^, P^yii^g" t^^6 rent at which he had en- tered, apparently a little less than £1. 5s an acre ; he neither asked nor received the £20 ', he expended about £G0 on permanent improvements, and there was a friendly feeling* between him and his landlord. On Burke's death, in 1854, Dr. O'Fay applied to his son who succeeded him, for a lease for three lives and thirty-one years, and was answered by the ag-ent, that the younger Burke would not make any lease on his property. Burke at this time joined his regiment in the Crimea, and after his departure, the agent wrote to Dr. O'Fa}^, sa3dng', that he was serving, notices by the instructions of Burke on all the tenants from ^^ear to year, preparatory to raising their rents on account of the enhanced value of land, and of all farm produce ^ but that he would not serve him with a notice without first wTiting to ask him to send a proposal for increased rent. Dr. OTay replied that he was not a tenant from year to 3^ear, but held under the letter of March 1849. He added, " I leave m}^ case in your hands at pre- ^^ sent 5 there is no need for sending in a further pro- " posal, particularly^ as a lease will not be granted on " any part of the proper ty.^^ On receiving this letter the agent forbore to send the notice, and did not raise the rent. Burke, on the hearing of the case stated that he did not know of the letter of 1849, and had not authorized this conduct of his agent. Dr. OTay now spent above £500 upon improvements and the 77 erection of buildings^ ^^ under a hond^fide expectation/' as one of the Judges said," reasonably entertained that " the -possession would not be disturbed/' And the evidence proved that Burke on his return saw the ex- penditure which was being* incurred. An accident broug-ht on a dispute. Burke's own farm adjoined that of Dr. OTay ; and "an unruly ram'' belong'ing' to Dr. O'Fay g-ot over the boundary between the two farms, and caused the litigation. Burke broug'ht an action of ejectment againf_t Dr. OTay, and obtained judg-ment, subject to an application to the Court of Chancery to compel Burke to fulfil his father's promise of a lease. The Master of the Kolls, before whom the case first came, refused the application of Dr. O'Fay. As a matter of law, he held him to be a ten- ant from year to year ; and the case to be g-overned by the rule of law that a tenant from year to year who makes permanent improvements without any expecta- tion held out by his landlord, does not thereby raise an equity as ag-ainst the landlord, though the landlord may have looked on and not given any warning to the tenant. He concluded his judgment in these words : — " Even if the Eev. Dr. O'Fay had no claim, except as tenant from year to year, I have no hesitation in stating that, although in point of law, on the authorities I have referred to, and particu- larly the case of Pilling v. Armitage, the petitioner's suit could not be sustained, yet nothing can be more repugnant to the principles of natural justice than that a landlord should look on at a great expenditure carried on by a tenant from year to year, without warning the tenant of his intention to put him out of possession. 78 The defendant's offer to allow Dr. O'Fay to remove the buildings was a mockery. I think it probable that the case will be relied on in the next Session of Parliament as affording an argument in favour of a Tenant's Compensation Bill for Ireland ; and " if this was not an exceptional case, it would, I have no doubt, lead to legislation on the subject. It is however due to the landlords of Ireland to state that, so far as I can form an opinion from the cases which have come before me in this Court, there is rarely a case of such oppression and injustice as the present. " I have no jurisdiction to administer equity in the natural sense of that term, or I should have no difficulty whatever in making a decree against the defendant. I am bound to administer an artificial system, established by the decisions of Lord Eldon and Sir William Grant, and being so bound, I regret much that I must administer injustice in this case, and dismiss the petition ; but I shall dismiss it without costs. I should be very glad, for the sake of justice, that my decision should be reversed by the Court of Appeal.'* The Court of Appeal affirmed the judgment. The Judg-es^ looking- at the rent he actually paid^ and his not having' received the £20^ considered Dr. OTay to be a tenant from year to year, occupying- not upon the terms of his own proposal or of the letter of March 1849; but upon the terms upon which he had entered pending' the neg-otiation. With regard to Burke's cognizance of Dr. OTay^s expenditure, one of the Judges said forcibly that he could not draw from the evidence the conclusion of fact that Burke knew of Dr. OTay's expenditure, much less acquiesced in it, with the knowledge of his claim to a lease under the letter of March 1849. The Judges, therefore, held the case to fall under the rule of law laid down by the Master of the Rolls. They I* 9 sbowed their sense of its g-eneral merits, by replying to the application made on behalf of the defendant for costs, that the landlord could pay himself out of the improvements he was getting* possession of.* There is one unsuccessful effort at legislation in this period which must not be omitted. In 1852, the present Sir John Napier, then Attorney-General for Ireland, in Lord Derby's government, brought in a Tenants' Improvement Bill, with a clause for retro- spective compensation. t This Bill forms an era in the history of the subject, for it has removed the ques- tion of retrospective compensation from being a party question, and has handed it over entirely to equity and morality. Such are the leading facts of Irish tenure. Let us now place them, as was proposed, by the side of the principles of English law, and the judicial decisions of our Courts on cases most nearly parallel, and mark the points of resemblance and of difference. There can, I think, be no doubt that the present tenure of Ireland, tried by English law, is an anomalous tenure. A tenancy from year to year, with an understanding that the tenant is to do permanent improvements, and without a correlative custom of the country for his protection, is happily not the tenancy from year to year known to English experience. Our experience shows us, on the one hand, limited agricultural im- * Irish Ch. E. YIII. 225, 511. t Parliamentary Papers, 1852 — 53. 7. 80 provements made b}^ tenants and protected b}' customs of the country ; and^ on the other hand, particular eases where building's erected or improvements made by tenants without leases^ either under some supposed special barg-ain which is found when a dispute arises not to exist, or in reliance upon the honour of their landlords^ or in a careless confidence in a continuance of the existing" state of thing's, have become lost to the tenants upon a chang-e of the ownership of the land ; and in any of these cases if the tenants have re- ceived compensation, the compensation has been g-iven for the honour of the landlord. Instances of such loss to the tenants have come within the experience of most conveyancers in larg-e practice^ but they are exceptional and not numerous. The case before us lies between the two extremes known to Eng-lish experi- encC; improvements being- made without leases, but at the same time under circumstances justifying- or in- ducing confidence in the continuance of the tenancy. The relations of the landlords and tenants of Ireland are further complicated by the fact that improve- ments are^ to an increasing deg-ree^ made jointly; and still further complicated throug'hout nearly all Ulster^ and in many parts beyond Ulster, by dealing's in which both landlord and tenant contemplate a con- tinuing- thoug-h undefined interest in the tenant. That these complications have left tenancy from year to year in the same position in which they found it, is a supposition at variance with the spirit of Eng"lish law. But what exact relations have been 81 created, or ate being; created by these means between the parties, it is not easy to say positively, more especially as one formula will not embrace all the re- lations. The g-eneral result may, I think, be thus stated. Irish tenure without lease, must be considered to be a tenure from year to year, with different equities annexed— equities in some instances, capable of being" enforced in a Court of Chancer}', so as to limit either the power of eviction, or the power of raising- rents, or both ; or, at any rate, so as to ensure the tenant com- pensation on removal ; and equities, in other instances, tending in the directions just mentioned, but only moral equities. The evidence in each instance must decide to which categ'ory the instance belong-s. Let us go step by step, beginning- with the instances where the equities are the weakest. In a country where it is the practice for tenants to make the improve- ments, a landlord allowing a tenant to enter without a lease upon the land, and to make the improvements necessary for the enjoyment of the land, cannot be supposed to have held out an expectation, nor can the tenant be supposed to have entered with the expectation, that the landlord should re-enter immediately and ap- propriate the labour of the tenant. Some expectation the landlord has held out, and upon the faith of it the tenant has entered. What is it? The expectation differs in different cases. Like many other agreements not re- duced to writing, but resting upon words and acts, the contract between the parties has been left vague, and a 8S has now to be determined by law. We have no cases exactly parallel to g-uide us^ because cases arise out of the facts of society^ and the facts of English society differ radically from the facts of Irish society. We must look then at the nearest Eng'lish cases^ where tenants without leases have incurred expenditure under some expectation, and, after seeing how Eng'lish law has dealt with them, consider how far the conclusions are modified by the difference between Eng'lish society and Irish society. We shall find no better exposition of the law than that g'iven by Lord Kingsdown in summing' up the results of these cases : — " If a man, under a verbal agreement witli a landlord for a certain interest in land, or, wliat amounts ^to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objec- tion by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell, 18 Ves. 328, and, as I conceive, is open to no doubt. " If, at the hearing of the cause, there appears to be such uncertainty as to the particular terms of the contract as might prevent a court of equity from giving relief if the contract had been in writing, but there had been no expenditure, a court of equity will nevertheless, on the case which is above stated, interfere in order to prevent fraud ; though there has been a difference of opinion amongst great judges as to the nature of the relief to bo granted. Lord Thurlow seems to have thought that the Court would ascertain the terms by reference to the Master, and if they could not be ascertained, would itself fix reasonable terms. Lord Alvauley and Lord Eedesdale, and perhaps Lord Eldon, thought 83 this was going too far ; but I do not understand any doubt to have been entertained by any of them that, either in the form of a specific interest in the land, or in the shape of conpensation for the expenditure, a court of equity would give relief, and protect in the meantime the possession of the tenant, ** If, on the other hand, a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term, or an allowance for expenditure, then if such hope or expenditure has not been created or encouraged by the landlord, the tenant has no claim which any court of law or equity can enforce. This was the principle of the decision in Pilling v. Armitage, 12 Yes. 78, and, like the decision in Gregory v. Mighell, seems founded on plain rules of reason and justice."* If we arrano-e the cases of these Irish tenants under o the three classes of this passag^e, very few will be placed in the first class, for that class is intended to comprise tenants who have entered without lease upon the promise of a specific interest, while the peculiarity of Irish tenancy without lease is that no definite interest is held out in expectation. More cases will belong- to the third class, in which are placed tenants who, knowing" the extent of their interest, have incurred expenditure upon hopes not created or encouraged by their landlords, and who have no claim in law or equit3% Into this class came the case of Dr. O'Fay. But most Irish tenants will, I think, be found to belong* to the second class, which comprises the cases of uncertainty as to the particular terms of the contract 30upled with expenditure, with regard to which Lord Kingsdown, folio wino^ the authority of the great * Dyson r. Ramsden, L.E. 1. H. L. 129. G 2 84 j adobes whom he mentioned, and to whom he must be, added as second to none, says that there is no doubt that a Court of Equity will grant relief either, for this is the only point where these judg'es differ, in the form, of a specific interest in the land or in the shape of compensation ', and, — here all these judges agree,— in- the meantime protect the possession of the tenant. We may pass by the first class without further notice. Jhe real question is, Do these Irish tenancies belong* in general to the second or the third of these classes ? To answer the question, w^e must examine carefully the case to which Lord Kinofsdown has referred as describ-; ing" the third class, because it forced, as we have seen, the Irish Judg-es, to deliver a judgment, from the re- sults of which they shrank, and because the transaction detailed in it resembles actual transactions in Ireland, excepting- the difference of system as to improvements in Eng-land and Ireland. The plaintiff, a tenant from year to year, filed a bill to obtain a lease of some premises from the defendant, on the ground of an agreement which he alleg-ed to have been made in 1790, but which was denied by the defendant, that in consideration of his improving* and building- a mill on the premises he should not be disturbed during- the lifetime of the defendant. The plaintiff's expenditure was not disputed , but he failed to prove the alleged agreement based upon it. In giving- judgment ag-ainst him, Sir W. Grant, after pointing out this failure of proof, entered upon the wider question involved; and his remarks have 35 governed the matter ever since. This is my excuse for setting" them out at some length. He said :^- " Can the plaintiffs then claim upon the general equity, having laid out a great deal of money in improving the mills, with the knowledge of the defendant, standing by seeing them go on, not objecting, or in any way intefering to prevent them ? AVhatever equity might arise upon that footing would be of a different sort from that which they could claim upon a specific engagement for a lease of a definite duration. As to that, if you disconnect the improvements from any specific engagement, upon the faith of which they were made, it is rery difiicult to give the plaintiff the benefit of this improvement to whatever degree they may have ame- liorated the estate. I would go every possible length to aid parties in obtaining reimbursement of expenditure upon another's property, of the benefit of which they have been deprived by the exercise of his legal right, determining their lease from year to year. "Whatever his own breast may suggest to him, the question here is, what legal and equitable redress can be obtained. "I do not know any case in which a lessee, either of a term or from year to year, making any improvement upon the estate in his possession, though with the complete knowledge of the land- lord, has been held as entitled against that landlord to have his lease prolonged until he shall obtain reimbursement for the im- provements he has made ; for he has a title, of which he knows the duration. He is not under a mistake with regard to the nature of his title. He may, perhaps, be guilty of great im- prudence if the expectation, that his lease will be renewed, or his possession from year to year will continue, prove unfounded. But, because that expectation is disappointed, can I say he has acquired a right to a prolongation of his lease, or to a lease for a certain period ? What is the information the landlord ought to be expected to give in such a case ? What information can he give to a tenant from year to year other than he possesses ; viz., that he is a tenant .from year to year, making improvements, and 86 laying out money upon an estate in which he has no permanent interest. " I am now supposing there was no promise by the defendant to quiet the plaintiffs in the possession for his life ; upon such promise, if established, they must succeed ; but, treating it merely as the case of improvements, made in his view, that information would not have conveyed to them anything they did not possess. " This case is the case of a tenant from year to year, making improvement at his own discretion, upon the hope, arising from the habit of his landlord, that it would be worth his while to take the chance, having no apprehension of being disturbed. These parties, independent of any promise, rested so much upon the faith, that they should not be disturbed in the enjoyment, as their ancestors had not been for many years, that they thought them- Belves as safe as if they had a lease. But can I convert that hope into an actual engagement by the landlord, binding him down to permit them to continue in possession, not for a definite period, but until they shall be reimbursed. See how far that would extend. The case hardly occurs of a good tenant, especially where tenants are seldom turned out, who does not make some improve- ment. Can a Court of Equity say such a tenant is never to be removed, until it has been settled in ecyiity how much has been laid out under the expectation that he should not be turned out, and the landlord would not exercise his legal right until reim- bursement ? This is a hard case upon the plaintiffs, if they lose all their money ; but to give redress in a particular case likely to occur rarely, am I to lay down a principle, that would shake the security of property in almost all its ramifications and the dealings of men with each other ? 'For that purpose, T must say, that the true measure of justice is that a landlord should never turn out a tenant, if improvements have been made with the know- ledge of the landlord, until the tenant shall be completely reim- bursed." * * Pilling V, Armitage. 12 Ves., 78. 87 To put it shortly. A tenant from 3 ear to year does not by the mere fact of making* improvements, thoug'h with the knowledge of his hmdlord, acquire a right either for a prolongation of his holding- or for com- pensation. Before we are in a position to clear up " the uncertainty as to the particular terms of the con- tract'' between the two parties, we must have some evidence that there is a contract. Occupation coupled with improvements do not of themselves imply an agreement. In arriving at these decisions the Judges of England have set out from a system in which landlords make improvements, and the improvement of tenants are exceptional. This is constantly to be observed in their arguments. On the occasion when Lord Kingsdown delivered the judgment already quoted, in a case where a tenant from year to year had built a house, and then claimed a lease upon an alleged tenant-right of the estate. Lord Cranworth and Lord Wensleydale spoke of the " folly" exhibited by tenants from 3''ear to year in building. Sir W. Grant, as we have seen, feared to " shake the security of property in almost all its rami- fications,'' by attempting ^^ to give redress in a parti- cular case likel}^ to occur rarely.'' If, when reading the words of these Judges, we call to mind the conduct of Dr. O'Fay, or of Mr. Clarke of Eathcore, we shall see that the Judges are reasoning from their experience of one set of facts, and the Irish tenants are acting from their experience of another set of facts. AVhat is rare to Sir W. Grant appears to be the natural conduct to 88 these tenants. It is precisely this difference which .makes the Irish Master of the EoUs speak of his being* bound to administer *^ an artificial system/' In Eng*- land the sj^stem has followed from their roots the rami- fications of property. In Ireland it comes upon ramifications issuing* from another stem. In Ireland to apply the term ^^ folly'' to these tenants would be mere mockery. No Judge would use the word of a practice sanctioned by a standing* of two hundred years, and adopted for the convenience of the landlord no less than for the convenience of the tenant. Hence in applying- these decisions to Ireland, we must ask • — How far are they modified by the difference between the English and Irish systems ? English law would cease to be English law if so remarkable a difference in the circumstances did not produce any modification ; but in the absence of any decision on the exact point, I can speak only wdth hesitation. This difference in the circumstances must, I think, produce at the very lowest, two legal results ; first, less evidence must be necessary on the part of the tenant of the landlord's knowledge of the improvements, for his knowledge is a step though not enough alone, even if the difference does not shift the burden of proof, and raise a presumption of the landlord's knowledge of improvements suitable to the holding" ; and, secondly, as the system is intended for the benefit of the landlord as much as for the benefit of the tenant, less evidence than in England must be necessary to support a promise on the part of the land- lord of a continued tenanc}^. 89 So far we have been dealing* with the cases in which the equity is the weakest, and dealing* with them in the only way possible in these pag-es, as a class. Let us advance a step, and take the class of cases daily, as the evidence shows, becoming- more numerous and more distinct, in which improvements are made by the land- lord and the tenant jointly, and place them beside the law, as explained by Sir W. Grant in another part of the case already quoted. The defendant, in that case, while denying* the agree- ment set up by the plaintiff, asserted that the real agreement was one entered into in 1794, according* to which the defendant was to advance £300 out of £500, at which sum the necessary repairs and improvements had been estimated, to furnish wood at a reasonable price, and stone g-ratis, and the plaintiff was to pay in- terest at £5 per cent. The plaintiff^ however, did not Tely on this agreement. Sir W. Grant said : — *' The only possible ground for redress is upon the footing of the agreement of 1794) ; but that is inconsistent with the shape of the Bill. If a landlord enters into an arrangement with a tenant relative to improvements, and so completely sanctions them, as iiimself to agree to advance part of the money, implying that another part is to be in advance by the tenant, I doubt whether that does not fasten an equity upon the landlord, precluding him, when these improvements are made under his authority, from paying there is an end to the lease. Such an arrangement, though without a specific arrangement would imply one ; as it would be BO contrary to good faith to encourage a tenant in so positive and direct a manner to proceed in particular improvements arid then deny him all benefit, that I think equity would interfere ; and hold 90 it an implied term, that the tenant should have the fair benefits from the improvements, thus made by the concurrence of his land- lord." Our next step leads us to Ulster Tenant-Rig-ht. Some landlords, we have seen, deal openly with tenant- rig'lit, while others shut their eyes to its existence ; hut accept its benefits. As a matter of law^ there can can be little doubt that the landlord who accepts the benefits with closed eyes is as fully affected with notice of the transaction as the landlord who deals openl3^ Let us recapitulate the leading* features of the transaction. It is done with the knovvledg*e, and sometimes at the office, of the ag*ent 3 the landlord accepts the incoming* tenant upon the sugg-estion, sub- ject to different limitations in different estates, of the outg-oing* tenant; he allows the incoming* tenant to pay money as a consideration for the tenancy under him, sometimes actually reg-ulating* the money paid ; and when his rent is in arrear, he takes the first share of the money. Most landlords who act in this manner intend to make themselves parties to the transaction ; but whatever they intend, where all or most of these acts are combined, they would be held in law parties. What, then, is the leg-al import of these acts ? With- out doubt the landlord holds out to the incoming- tenant an expectation of an interest of some duration, but what the expectation is must depend on the par- ticular circumstances of each case, and vary on each estate. To take an instance. Suppose an estate of which the tenants are given to understand that they. 91 will not be evicted, except for the breach of some well- known rules of the estate, and that their rent will not be raised or even revised for twenty 3'ears from a given date;* and suppose a new tenant admitted to replace an old tenant under the tenant-right, five years after this given date ; these circumstances would probably fasten an equity on the landlord, preventing him from evicting the tenant, except in the cases provided for^ or raising his rent during the remaining fifteen 3'ears. Other instances may be suggested, where the tenant might not succeed in resisting eviction, but would pro- bably be held entitled to compensation for the money he had been allowed to spend. Or, again, in other cases, where the tenant failed in preventing altogether an increase of rent, the money paid by him would probably be held a charge upon the land, and a Court of Equity would restrain such an increase of rent as would encroach on the value of the charge. One step more. It is obvious that the equity in favour of the tenant becomes still strong-er in cases where tenant-right and joint improvements meet. The question will rise to the lips of every one. How comes it, if these equities exist, that the tenants have not availed themselves of them, and why need we any further remedies ? The question admits of a distinct answer. These equities are enforceable only in the Court of Chancery, and the Court of Chancery is too far removed froln the home of the small holder, and too expensive to help him. Whatever other legislation is * See Minutes of Evidence. H. L. 1867. Q. 881, &c. 02 needed, our survey of the facts of Irish tenure must convince us that rights and remedies relating* to land ought not to be left to equities, the full values of which have not been judicially determined, but should be defined by positive legislation, and administered by Courts on the spot. As it is, the jurisdiction of the Court on the spot, the Civil Bill Court, is too limited to afford full relief, although as long ago as 1816 this Court was invested with authorit}^ in the matter. The Act of that year, already mentioned as giving the Civil Bill Court concurrent jurisdiction with the Superior Courts in ejectment in the case of small tenements, by a clause designed to protect the tenant, entitled him to every defence he might have in law or equity.* This clause was repeated in the Landlord and Tenant Act of 1860, and is now in force.f But the operation of the clause has been much narrower than could at first sight be supposed from the words. The Act of 1816, in giving the Civil Bill Court merely a concurrent jurisdiction with the Superior Courts of law, left the plaintiff) when the tenant whom he sought to evict raised an equitable defence, liberty to remove the case from the Civil Bill Court, where the equitable defence was available, to the Su- perior Courts of law, where the equitable defence was not available. So completely was this the result that an Irish judge, in discussing whether an equit- able defence before him should be admitted, said :— * 56 Geo. III. c. 88, s. 9. f S. 9. ^^ There is always this to be considered when we are going" to do a thing of that kind, that you put the unsuccessful part}^ to bring* his ejectment before an- other tribunal, where the leg-al title must prevail, as the Court of Law cannot regard the equitable case of the defendants." Thus in practice, the jurisdic- tion of the Civil Bill Court was limited by the purely legal jurisdiction of the Superior Courts of Law. This result has been somewhat modified by the subsequent legislation, which has rendered equitable defences in ejectment admissible in the Superior Courts of Law ; but substantially it remains as it was, and the test as to whether a tenant can successfully maintain an equitable defence in the Civil Bill Court is practically still, whether he can maintain the de- fence in the Superior Courts of Law. Now, the Supe- rior Courts consider their jurisdiction limited by the nature of their machinery. This may be illustrated by a typical Irish case. In an action of ejectment, the defendant pleaded as an equitable defence an alleged agreement between himself and the plaintiff that in consideration of his paying the plaintiff a debt of £18 due from the outgoing tenant, and engaging to expend £150 upon the farm, the plaintiff promised not to dis- turb him so long as he paid his rent regularly, without repaying the £18 and the expenditure. The Court, however, set aside the plea. It disclosed, said Judge Crompton, a case for equity : but it was impossible to settle the action without an account 5 and the Court had no officer, no machinery and no authority to take such 94 an account.* The practical limitation thus imposed is obvious. The value of tenant-rig'ht based on improve- ments is essentially a matter of account, — account of g-rowing" intricacy, in proportion as improvements are made jointly, — and Courts without officers, machinery, and authority to take an account cannot administer justice. "When we criticise the rough and ready valua- tion conventionally adopted for Ulster tenant-rig'ht, we must not forget that the law does not afford help in valuing" the elements which admit of being- reduced to certaint3^| We have thus reviewed the facts of Irish tenure ; we have placed them by the side of the principles of Eng*- lish law, and the judicial decisions most nearly applic- able ; and these are our results. English law has been administered in Ireland without the element of Custom : and English equity is liable to become in Ire- land a merely artificial system, if it neglects to take cognizance of the systematic difference in agricultural management between England and Ireland. But taking" cognizance of that difference, we must be led, I think, to these conclusions — that a g-reat number of the tenants of Ireland have actual rig-hts which are ill secured; that there is between them and their landlords a complicated state of accounts which it is for the interest of both parties to have cleared up, and put on a footing* so distinct as to pre- * Cochrane v. Commack, 7 Ir. C. L. E. 10. t I owe the facts of this paragraph to the kindness of Dr. Han- cock. 95 vent similar complications hereafter ; that the present tenancy from year to year lodges in the hands of land- lords too much power ; and that the present state of the law and the machinery hy which the law is admi- nistered do not suit the conditions of Irish society. These conclusions present a basis for legislation ; but before sketching any legislation^ it will be well to ex- amine w^hat other considerations the facts reviewed suggest. In the first place, the great variety of the facts in itself shews the impossibility of applying one common remedy, either by establishing fixity of tenure or by granting- one universal lease, whether for a term of sixty-three or twenty-one years. On what principle are we to make the same gTant to tenants, of whom there are many, who are not improving their holdings even if they are not deteriorating- them, and the ten- ants, who are steadily reclaiming the inhospitable moorlands of Donegal, or to come nearer home, are creeping up the hill sides almost within sight of Dub- lin. On what principle are we to mete out the same measure to the landlord who does everything and to the landlord who spends nothing on his estate, and how can such a remedy meet the cases of improvements jointly made by landlords and tenants ? Lastly, with what justice can we do this thing to proprietors who have purchased within the last twenty-five years property to the value of thirty millions under a Par- liamentary title? In the next place, it seems impossible to deny that 9G the long' leases from which so much was expected in- the last century, and which were advocated by Dobbs and by Burke, proved a failure. The experiment w^as fairly tried in very many of the leases made after 1777. The original lessees under these leases were not middle- men, but real cultivators who by the subsequent rise of prices were induced to sublet to other cultivators, and these ag-ain to others in a descending series. This is shewn in the history of several estates traced by the Devon Commission.* The truth is, that when the orig-inal lessor and lessee turned their backs upon one another for sixty years, the time of their meeting" ag-ain was so distant that neither had any very strong* per- sonal interest in what would be the state of thino-s at that epoch. Judging* from the past, the best pro- tection for the tenant, best, that is, looking to the ad- vancement of agriculture and the general w^elfare of the communit}', is not to be sought in long agricultural leases, but in providing him with complete security for compensation for his outlay, whatever the length of his lease, and whenever the termination of his tenancy ; and in leaving the length of the tenancy to be settled by the requirements of the agriculture of the district.* Again the facts before us shew the risk, it might not be too much to say, the certainty, that every law, good or bad, wise or unwise, affecting the framework * e. g. The Caher Estate ; and Lord Palmerston's Estate, t I have seen two forms of leases in actual use in Ireland, drawn on this principle. 97 of society, will produce effects different from the effects anticipated. " Sith every action that hath gone before, Whereof we have record, trial did draw Bias and thwart, not answering the aira. And that unbodied figure of the thought, That gave *t surmised shape.** There is nothing* which more impresses the student of leg-al history^ than the collateral and unexpected results of almost every law, results hicreasing* in im- portance with the importance of the law, and some- times overtopping its direct effects ; and there is no pag-e of legal history more full of striking illustrations than the history of Irish legislation. The tenure of leaseholds for lives renewable for ever was intro- duced by men of wisdom after deliberation, as the best remedy for the evils pressing* in their day, but it ended in producing* great uncertainty of tenure. The long* leases consequent upon the Act of 1777, promoted the subsequent subdivision of land; the Act of 1793, conferring" the franchise on Roman Catholics, an Act of undoubted justice, operated in the same direction, and the Act establishing- the Landed Estates Court, notwithstanding- the advantages attending- it, has, in many instances, worked hardly for tenants. Looking- back, we are able to say how each of these laws was drawn athwart, but the lawgivers looking forward, failed to foresee the causes which have diverted each law, " Tortivo and errant from its course of growth/* From these failures we may gain experience. The H 98 tenure of leaseholds renewable for ever failed^ mainly because the tenant-landlords imitated the fashion set by their superior absentee landlords, and lived upon the re- venue of their estates without superintending- them. The operation of the Acts of 1777 and of 1793 was affected b}^ the long" war ; and at the time of the establishment of the Landed Estates Court, the legislature did not properly appreciate the conditions of Irish society and the nature of tenants' property. The neglect of their duty by a class, and war, are disturbing* forces which a lawgiver could not foresee ; but the warning- conveyed by the past, that disturbing- forces which Ave cannot now foresee will certainly appear in the future, bids us observe all the more carefully what is within the rang-e of our horizon, the actual conditions of the society for which we are legislating. And a careful observation of the past and present conditions of Irish tenure cannot fliil, I think, to make every one shrink from summary and startling* legislation, and prefer, as regards the past, to give security to every rig-ht which has established itself j and, as reg'ards the future, to enable ever}^ Court having- jurisdiction in the matter, by the aid of ampler powers and more perfect machi- ner}' than heretofore, to protect every form of property which ma}^ grow up under an equity or a custom. Turning now from the past to the present, let us observe the conditions of Irish tenure, which may guide or assist us in leg-islation. The two most suggestive conditions of Irish tenure, ^t this moment, appear to me to be Ulster Tenant- 99 Rig-ht; and the increase of the S3'stera of joint im- provements by landlords and tenants. These two conditions have in common that they have not been produced by any law, but have grown up of them- selves. The latter, in brinc^ing* the landlord and tenant into friendly co-operation, has some analog-y to the process by which English agricultural customs have grown up, and as it raises an equity in favour of the tenant, it affords him protection which will become more complete in proportion as the jurisdiction of the Courts is enlarged. One of the dangers of attempting to force upon Ireland a term of lease by statute, is the great risk we run of making the statute the measure of the relation between the parties. In com- pelling a landlord by law to grant a specific lease, we exonerate him from all moral responsibility to do anything but obey the law; we disincline him to contract relations of his own with his tenants; we deprive the country of the advantage which it has already derived from the effect of the public opinion of England upon the landlords of Ireland, to which, in no small degree, must be attributed the expenditure already noticed as now incurred by them ; and we are in danger of stifling a practice which the most com- petent witnesses represent as beneficial, and as gaining ground in Ireland. We can ill afford to squander any of the forces for good, or waste any of the ele- ments promising advance which we possess. Our course is to uphold the practice, at the same time making it clear that the co-operation of the landlord H 2 100 and the tenant creates a legal relationship, under which each has a share which may be accurately determined. The other and by far the most sug'g'estive condition of Irish tenure, Ulster Tenant-Eio-ht, is not only of natural g-rowth^ but is the consequence^ as Lord Dufferin has said, of the good relations subsisting between the tenants and the landlords in the North of Ireland ; and it has existed long enough in turn to streno'then those relations throuofhout all Ulster. AVhether as effect or cause — probably as an effect first, and afterwards as a cause — it is the system of the part of Ireland where agriculture is at its best. The people of the North, as already mentioned, set great store by it. "It has wound itself,' ' says Mr. Trench, "into the feelings of the people, who consider it just and fair." It is a property valued at tw^enty millions \ and those among the Irish of the North who are join- ing in the agitation respecting the land question are joining in it from the fear that Ulster tenant-right is in danger, and in defence of the property invested. Lastly, it is the object of desire in other parts of Ireland. Ulster tenant-right has this remarkable peculiarity, that it sprang up among the immigrant race, and has been extended to the Celtic race, and been welcomed by them. It is the only acceptable present made by the one race to the other. It is the one institution which the tenants of both races unite * Minutes of Evidence. H. C, 1865. Q. 965. 101 in uplioldin^j. Its origin may be in Londonderry, but it is as hig-bly valued in Donegal as in Londonderry^, and it is desired in Tipperary and Cork. Ulster tenant- right, therefore, comes before us with claims on our attention difficult to overrate. What, then, is the essence of the S3'stem in the eyes of the tenants ? They value it because it affords them protection, and it affords them protection by creating for them a charge upon the land. It does not give fixity of tenure in words, because, however unpopular might be the exercise of the right, the landlord is admitted, under the system, to have the right of removing a tenant upon paj^ment of the tenant-right. But it tends to fixity of tenure, because it makes eviction expensive. And it further oflers some guarantee against an undue increase of rent. The critics of the sj^stem, especially the English critics, appear to me to have attended to the accidents, not to the essential part of the system, and to have fixed their eyes too exclusively on the amount of the charge as diminishing the capital of the tenant, and its origin as conceding' a right of occu- pation. To the tenant the important point is that the charge in his favour exists. The present tenants have either inherited or bought up the charge, and are in- different as to its origin. No more instructive illustration of the difference between the points of view of the tenants and their critics can be selected than the following extract from the evidence of Mr. Eussell, the agent for the property of the Marquis of Conyngham in Donegal, given to the Committee of the House of Lords : — 102 " Do you consider that under Ulster tenant-right a tenant is placed in advantageous circumstances for improving his property ? — They go on improving under that tenant-right ; they consider that the purchasing of that tenant-right gives them, in fact, an interest in the land as good as the proprietors. " It gives them fixity of tenure ? — It gives them fixity of tenure. "About what is the rate that is paid for tenant-right ; I suppose there is something like a regularity in the tariff, is not there, of the purchase-money that is paid ? — It depends very much upon the locality. Upon the large proprietors* estates a very much larger sum is given than on small proprietors' estates for the tenant-right. On Lord Conyngham's estate, which I manage, it varies from 10 to 20 years' rent. " That is, from 10 to 20 years' purchase ? —Yes. " Then a man pays nearly the fee simple of the laud, in order to have the privilege of paying the proper rent to his landlord ? Yes. " That is the reason I asked you whether, where tenant-right prevails, a tenant was under circumstances that would enable him to improve the land, and do justice to himself and his landlord, and you say you think he is ? — It very often happens that to make up these sums they are obliged to go into debt ; they borrow from whom they can at a high rate of interest. " Then the tenant enters upon this business which is every day becoming one requiring more and more science and skill and ap- plication of capital, with his millstone round his neck ? — Yes. " Snrely he cannot be in a position to do justice to himself and his landlords ? — Such is the system. ** We want to know whether in your judgment it is a good system ? — If it could be got over it would be very desirable, but I do not see how it can ; it has been going on for so many years that a man thinks when he pays so much for the right to hold his landlord's property that he has a right not to be dispos- sessed of it without the privilege of selling it to another. " It is a property charged with a rent to be paid every year ; 103 the consequence is the tenant must be perpetually in difficulties. I do not see how a man is to live who pays the fee simple of the property (for it comes very nearly to that), and has to pay what his landlord expects and considers to be a proper rent for it after- wards? — Unless he has the money accumulated, he is in dif- ficulties all his life ; but in many cases by frugality and industry, he in a few years is enabled to pay off the sum borrowed. " Has it not struck the people that that cannot be a good system which secures a man's being in difficulty all his life. — The tenants in Ulster do not appear to think so ; they think it gives them a security, and so anxious are they to possess land that they gladly avail themselves of it."* It is admitted on all hands that larg*e sums are paid for the tenant-rig"ht. I cannot^ however^ help sus- pecting* that the statements of the evil resulting* from these payments — statements coming from one side- are exaggerated. The small holders, who cultivate with the spade and lime, do not in the present state of their agriculture care to spend money upon their holdings, and the money paid by them for tenant-rig^ht is withdrawn from their deposits at the bank, or from their hoards in the thatch, or some old stocking- : and as to the larger tenants, some weig-ht should be allowed to their own explanation as given to me by a substantial farmer in Down. " It is not money,'' he said, ^' which they would spend on their farms. It is money saved up in other ways to buy a home." We have to bring* these payments into harmony with the fact of Ulster being the best cultivated part of Ireland. The problem is one in which the calculation upon the elements * Minutes of Evidence. H. L. 18G9. Q. 831. 104 furnished by political economy must be corrected by the introduction of moral elements, in order to bring- out a result accounting* for all the facts. The amount paid may lessen the tenant's capital, and in so far be a force acting" ag-ainst agriculture. But the sense of security purchased is a force on the other side, and the resultant of the two forces is in favour of aofriculture. After reading- the evidence of Mr. Russell — corrobo- rated as he is by others — no one can doubt that the power of purchasing" this tenant-right is an incentive to frugality, and that its possession gives the tenant a security which he values^ and under which he makes improvements. He may pay highly, but he has secured the protection, the want of which writers and statesmen^ and generations of the people, have felt to be the flaw of Irish tenure. This security has been obtained not by means of leases, but by the creation of a charge upon the land. To this I ask attention. We cannot feel surprised that almost every one who has approached the subject and looked at Ulster tenant-right has asked, whether it would not be possible to extend Ulster tenant- right over the rest of Ireland. To extend Ulster tenant-right pure and simple is impossible, because in Ulster a conventional mode of valuing the tenant's interest has been agreed upon; and in the rest of Ireland, with a few exceptions perhaps, this is not so. But the principle of securing a tenant by means of a charge is applicable wherever a charge can be created. And this charge can be created by the valuation of his 105 equity arising* out of the permanent improvements he may have made, alone or jointly with his landlord. The value ascertained becomes his tenant-rig-ht charge at the date of valuation. But in g'oing' throug-h the tenantry of Ireland^ we shall find many who have not improved their holdings, or have improved them under circumstances which do not raise an equity in their favour; tenants, for example, whose rent has been lowered in consideration of future reclamation, and who have consequently received their compensation. It would upset the first principles of contract to treat these tenants as having acquired tenants' property or equitable rights. Ac- cordingly every Tenant-Eight Bill has, in some form, recognized that a tenant is not entitled to compensa- tion for improvements made in pursuance of a contract or in consideration of any reduction of rent allowed at the commencement or any other period of his occupa- tion. And where no compensation can be recovered no tenant-right charge can be created. We must protect these tenants b}^ other means, and protection may, I think, be afforded them by converting a tenancy with- out lease from a yearly tenancy into a tenancy for a course of husbandry according to the custom of the country. In this change we make the law follow facts, and we carry out the principle by which tenancy at will was formerly converted into tenancy from year to year. Where the liberty of cultivation conceded by law to a yearly tenant is abridged by au obligation to cultivate with reference to a course of husbandry, he is fairly 106 entitled as a correlative right to a tenancy of the duration of the course.* I suo'o'est the extension of tenant-rlofht on a real basis in preference to compulsory leases^ not doubting^ that the introduction of leases is the g-oal to be aimed at^ but doubting- the wisdom of forcing- leases on the countr}^ There are two obvious means of forcing- leases : one by making- void all ag-reements not in writing', and the other by enacting* that in the absence of a written agreement a lease of an extended term shall be presumed. Both means have been proposed for Ireland ; but neither would really benefit the tenant. The first lessens his security^ and the second, by putting- the landlord and the law in antag-onism, tempts the landlord to curtail the excessive protection of the law by an express and harsher contract. It is safer to try to arrive at leases through tenant-right. Tenants with charg*es recognized by law will be in a better position^ and more likely than at present to enter into written ag-reements. Besides^ it is difiicult to say whether the ^reat mass of the tenants of Ireland desire leases. The only method of reconciling- the con- flicting- statements is by supposing- that the more intelligent and richer tenants desire them^ but that many are indifferent, if not averse to them. In Ulster, too, there is some fear of the effect of a lease upon tenant-right. This fear raises a point which must not be left un- * This change has been suggested also by Mr. Caird. " The Irish Land Question." 1869. P. 17. 107 settled. It has generally been proposed that a new lease — a lease^ at any rate, of some duration — should be taken as satisfaction for any prior claims of the tenant. I venture to sng-g-est that it is better not to enact any presumption on the subject. If a tenant on entering" into a lease holds a tenant-right charg-e^ and he and his landlord ag-ree that he shall give up the charge in exchange for a long term or lighter rent, their agreement can easily be expressed. But there seems no reason for enacting a presumption that the tenant intends to sell his charge unless he says so. In the long run it would probably be better for the land- lord that the tenant should retain the charge, for it would be a fund guaranteeing the landlord against loss at the end of the lease. The landlord would be in a position analogous to the present position of the landlords of Ulster, to whom, according to Mr. Trench, Ulster tenant-right as a money matter is a gain. We have based the tenant-right charge on a valua- tion. The question whether it would be better to value and register tenant-right charges at once, or to recog- nize the legal right now, and leave the actual amount to be valued when occasion arises, as well as the choice of the best machinery for valuation, are questions which require a knowledge of Irish Policy and of the com- parative fitness for the purpose of different branches of Irish Administration, which it would be presumptuous in me to affect, and questions, besides, lying beyond the scope of these pages. One or two general principles of valuation alone call for notice. Where tenant-right 103 exists with the cognizance of the landlord^ either avowed or to be implied in law^^ the amount paid with the cognizance of the landlord is the measure of the tenant's interest estimated as a charge. Where this measure does not exist, those entrusted with the task of valuation must proceed to estimate the value of the improvements of the tenants. Nor would the task be so difficult as might at first sight appear. The conviction has become widely established that tenants have a moral claim to compensation for permanent improvements, and in many estates some value must have been set upon the claim. In the expenditure spoken of by Mr. Trench on the estates with which he is concerned, we saw an entry headed ^^ Compensation for surrender of tenements." The agents possess elements of calcula- tion which it would be for the interest of the landlord to bring forward. Without being too sanguine, we might expect that on some estates the agent and the tenants would settle by agreement tables of valued interests ; and when the valuation has thus been passed through the two sieves of tenant-right and of agreement, the remaining cases of disputed facts would be reduced to a number small in comparison with the importance of the investigation. Again. Is the valuation to be made on the basis of the value of the improvements as they stand, or on the basis of the value of the unexhausted improve- ments ? The tenants answer. The value of the im- provements as they stand. Most landlords, 1 believe, in accord with the agricultural practice of England, answer differently. 109 Lord Dufferin shows that he feels the difficulty, for he divides improvements into those which affix some- thing* to the soil; separable in idea at least, as a house ; and those which may be called manipulations of the soil. To the latter he applies the notion of exhaustion. Ac- cording* to this view drainage and ploughing* differ merely in the difference of their furrows. The furrow of the ploughman is remunerated by the crop of the next season, while the furrow of the ditcher needs more seasons for remuneration. But Lord Dufferin told the Committee of the House of Commons that he allowed his tenants the actual value of a house after an enjoy- ment of even sixty years ; on the ground that its value, if it is kept in repair, is nearly as great then as on its first erection, and that it is not a self -compensating improve- ment.* It appears to me that the notion of exhausted and unexhausted improvements is not applicable as the basis of calculation in valuing the past improvements of Ireland, even if it be desirable to introduce the notion for the future by express contract. The notion of a tenant investing* in improvements with a view of re- couping* himself, is taken from a state of society in which the tenant has a market of investments open to him and ag'riculture has become commercial. The notion therefore may be supposed to form part of the common intention with which in this stage of society the landlord and the tenant contract. But this cannot » Minutes of Evidence. H. C, 1805. Q. 991. Q. 1007. This is the principle, not the exact words of the answers. 110 be asserted absolutely of Ireland in the past. Taking-, for instance, the barony mentioned by Mr. Trench as converted b}^ the tenants from an alder plain into a cultivated district, who would assert that the land- lord, who left the tenants to make this reclamation, and the tenants ^^ driven to extremities to support themselves," contemplated investments to be satisfied by being- replaced as the common intention of both ? Who would even assert that the idea occurred to either of them ? The tenants have supplied in this and other similar instances their own labour and the labour of their families in order to o-ain a livino- and to make a home. We are in dang-er of borrowing* a notion from one stag'e of society and applying* it to another. Length of enjoyment may enter into the calculation by way of deduction, as may enjoyment at a low rent and other limitations ; but they are deductions not to be absolutely presumed, but to be established as matters of barg-ain by evidence. The question has been much discussed, whether the express consent of the landlord should be necessary to found a claim for compensation for improvements. It is a question which decreases in importance in pro- portion as the S3^stem of joint improvements advances. It is important chiefly to the small holder, who reclaims at odd hours and by superfluous labour, and who has difficulty in furnishing" a precise notice of his labour. The agricultural customs of England, in which the consent of the landlord is implied to some operations of obvious advantage, suggest that a Ill similar consent should be implied in Ireland, within certain limits which mig-ht easily be defined. One word more. The creation of a tenant-riofht charg-e will limit an unfiiir increase of rent ; for it opens the door for the law to enter and restrain an increase of rent overlapping-, so to speak, the tenant- rig^ht charg-e 3 and the law, in allowing* an increase of rent, would measure, not by the momentary demand, but by the averag*e rise in the value of land. Thus would be securely welded the weak joint in the harness of Ulster tenant-rig-ht. And at this point arbitration mig-ht well intervene upon a definite legal basis, and without vagueness and the substitution of the manage- ment of the State for the management of the proprietors, in order to protect the tenant-right charge, and to fix the rent consistently with it, before the question of increase assumes a litigious shape, and comes within the jurisdiction of the ordinary Courts. And if the Boards entrusted with this arbitration had jurisdiction also to hear questions which the landlords and tenants agreed to refer to them, they might expand into useful Courts of Conciliation. Probabl}', among* the earliest ques- tions referred to them would be the determination in particular cases of what length of lease ought to be con- sidered an equivalent for past or future improvements of the tenant under the circumstances of the case. As in the matter of valuation, so here also it would be unbecoming in me to express an opinion as to the department to which such Boards ought to be attached; it is enough to say that the Boards muist be capable of 112 doing* right on the spot cheapl}^^ and must be impressed openly and deeplj^ with the stamp, not of tribunals of litig-ation, but of tribunals of peace. To sum up shortly. The equitable rig'hts which, according- to the arg-uments in these pag-es, man}^ of the tenants of Ireland possess, offer a basis for legisla- tion. It becomes our object to protect these rights. Two methods of protection present themselves, protec- tion by way of leases and protection by way of tenant- right. Tenant-rig-ht, as worked out by the people themselves, has, thoug-h unrecognized by law, already afforded partial protection to these rig-hts. By the leg-islation now sug-g-ested, that tenant-rig-ht w^ould be recog-nized in law, and by careful valuation converted into a well-defined system capable of being* extended and of being* adopted with or without leases. Leases would be made eas}'', but not compulsory. For the protection of all tenants, tenancy without lease would be presumed to be tenancy for the customary course of husbandry. To meet the g-reat difficulty, that customs of the country do not grow spontaneously in Ireland as in England, the Courts would have juris- diction sufficient to protect every future equity. And in the hope of removing* causes of dissension between landlords and tenants. Boards of Arbitration would be at hand to value and deal wdth tenant-rig*ht, and to adjust the rents due to landlords in accordance with it. Such are the conclusions to which we are led, and such is the help towards dealing* with the past and 113 leg-islating" for the future afforded us by placing^ the facts of Irish tenure by the side of the principles or decisions of English law, and to this, perhaps tedious and narrow but, not unimportant, investigation, these pag-es have been confined. Still our survey would be incomplete if we left un- noticed the proposal, grounded avowedly on the history we have reviewed, for facilitating the acquisition of the fee-simple by small holders. The proposal does not supersede our investigations, for it does not effect a settlement of the past or present relations of land- lands and tenants, but seeks to get rid of the difficul- ties by enabling Irish society, if so minded, to assume a new form. I suppose no one doubts that there are many tenants who have the means of purchasing, and desire to purchase their holdings, if the purchase could be made by instalments 3 and that there are many landlords willing to sell if they were not prevented by family settlements. This alone is a strong argument for rendering purchase easy, and striking ofi' every fetter which impedes the freedom of sale. But this is not all. The physical peculiarity of the country, the absence af coal, has made competition in many manufactures difficult if not impossible for the Irish, and has led them to look to the land. The history we have reviewed culminates in these facts. Of the five hundred and ninetj^-seven thousand holders of land in Ireland in 1866, very nearly two-thirds held between five acres and fifty j more than half held between I 114 five acres and thirty ; and far more than a quarter held between five acres and fifteen.* Mapped out before us lies a country of small holdings. The dis- cussion^ as far as Ireland is concerned, whether larg^e farms or small farms are most productive, is as un- practical as a schoolboy's theme^ comparing* the governments of Athens and of Sparta. For us the question is^ Under what tenure should small farms be held in Ireland so as to produce most prosperity and happiness? No one can venture to say that small leaseholds are necessarily more conducive to prosperity than small freeholds^ especially when there are elements of alienation between the landlords and the tenants of the leaseholds. It must be a matter of experiment to be tried by the people. Our experiments upon tenure have not proved successful j it is worth while helping them to try their own. Failures they will make^ many and bitter ; but the failures will teach them lessons and inflict natural penalties upon the lazy, the feeble, and the embarrassed; and landlords will be spared from being regarded as ministers of eviction and forced emigration. Land-jobbers will spring up ; though the protection of tenants' property will put some limit on their illegitimate profits. This is the dark side. There is a bright fc3ide. Legislation with this object cannot fail to obliterate the traditions of past conquest. Legislation with this object will be in accord- ance with, and bring into play, the love of country, the most enduring and one of the noblest of Irish ideas. * Thorn's Almanack, 1869, p. 854j. 115 When we have protected property acquired in the past, and enabled the people to acquire new property in the future, we may hope that at the end the vision will come and not tarry, which King- James the First and his leg*islator8 wrote on the tables of their law, but saw not, and every g-eneration since has waited for and none has seen; and that the uniting- of the King-doms of Eng-- land, Scotland and Ireland under one Imperial Crown will bring- to Ireland the happiness which it has broug-ht to Eng-land and to Scotland. 2, Haecouet Buildings, Temple. January^ 1870. kl CD3m7Sb7M 1